Missouri suspect wants warrant for BAC testing

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By Wes Wolfe / Staff Writer

Published: Saturday, January 12, 2013 at 08:43 PM.

You already said yes to the test.

In North Carolina, driving while impaired is considered by state law an “implied consent” offense. That means a law enforcement officer can demand breath, blood or urine tests of someone suspected of DWI without first obtaining a search warrant.

It’s not the same way nationwide. A case argued before the U.S. Supreme Court Wednesday could change procedure locally and elsewhere.

In 2010, Missouri State Trooper Mark Winder pulled over Tyler McNeely for speeding. According to reports, McNeely’s eyes were bloodshot and he smelled of alcohol. After he refused a Breathalyzer test and failed four field sobriety tests, Winder charged McNeely for drunk driving and took him to get a blood alcohol test.

Winder, who had done so in the past, didn’t get a search warrant for the blood test in this instance. McNeely had a .154 BAC, but the Missouri Supreme Court threw out the test. The court ruled that not obtaining a warrant beforehand violated McNeeley’s Fourth Amendment rights.

The State of Missouri, with an assist from the Obama administration, appealed the case to the U.S. Supreme Court.

So the question stands — under what circumstances can law enforcement order a blood test for a suspected DWI?

In North Carolina, driving while impaired is considered by state law an “implied consent” offense. That means a law enforcement officer can demand breath, blood or urine tests of someone suspected of DWI without first obtaining a search warrant.

It’s not the same way nationwide. A case argued before the U.S. Supreme Court Wednesday could change procedure locally and elsewhere.

In 2010, Missouri State Trooper Mark Winder pulled over Tyler McNeely for speeding. According to reports, McNeely’s eyes were bloodshot and he smelled of alcohol. After he refused a Breathalyzer test and failed four field sobriety tests, Winder charged McNeely for drunk driving and took him to get a blood alcohol test.

Winder, who had done so in the past, didn’t get a search warrant for the blood test in this instance. McNeely had a .154 BAC, but the Missouri Supreme Court threw out the test. The court ruled that not obtaining a warrant beforehand violated McNeeley’s Fourth Amendment rights.

The State of Missouri, with an assist from the Obama administration, appealed the case to the U.S. Supreme Court.

So the question stands — under what circumstances can law enforcement order a blood test for a suspected DWI?

Currently, half of all states ban warrantless blood tests. According to National Public Radio’s Nina Totenberg, the federal court “has long held that, except in emergency situations, warrants are required when government officials order bodily intrusions like a blood draw.”

In states like North Carolina, “emergency situations” include the charge itself. Indeed, John Koester, arguing for the prosecution, told the court that going for a warrant in the McNeeley case could have delayed an alcohol measurement by as many as 90 minutes.

Hence, the longer a body has the chance to metabolize alcohol, the less a test will show the condition of the suspect at the time of arrest.

“It would just prolong the arrest process, because the law enforcement officer would have to sit there and type, or put together a search warrant explaining the probable cause to take the blood,” Lenoir County Sheriff’s Office Chief Deputy Chris Hill said. “It’s just a delay, is all it amounts to. It would just take longer to complete that process.”

Hill added, “We do search warrants all the time. It’s just part of law enforcement. But when you’re trying to get an accurate blood alcohol content, time tends to be of the essence. A greater delay of time may create problems down the line as far as prosecution goes.”

State Trooper C.J. Daniels, though, sees the blood test as simply one element of evidence in building an overall case against a suspect. It could matter more in cases when the driving behavior isn’t eye-witnessed.

“Any type of test, whether it be a blood test or a breath test, is just to corroborate the officer’s opinion, as to (the suspect’s) impairment,” Daniels said. “It’s not absolutely necessary to have a test to charge someone with driving while impaired. The more evidence you have, the more information you have, the better your case is.”

Early media reports of the hearing indicate the Supreme Court justices are likely going to seek a compromise position on the matter – trying to protect Fourth Amendment freedoms without unduly hindering law enforcement.

Wes Wolfe can be reached at 252-559-1075 or wes.wolfe@kinston.com. Follow him on Twitter at WolfeReports.